2000年国际贸易术语解释通则(英文版).doc

Incoterms 2000 FOREWORD By Maria Livanos Cattaui, Secretary General of ICC The global economy has given businesses broader access than ever before to markets all over the world. Goods are sold in more countries, in larger quantities, and in greater variety. But as the volume and complexity of international sales increase, so do possibilities for misunderstandings and costly disputes when sales contracts are not adequately drafted. Incoterms, the official ICC rules for the interpretation of trade terms, facilitate the conduct of international trade. Reference to Incoterms 2000in a sales contract defines clearly the parties respective obligations and reduces the risk of legal complications. Since the creation of Incoterms by ICC in 1936, this undisputed worldwide contractual standard has been regularly updated to keep pace with the development of international trade. Incoterms 2000 take account of the recent spread of customs - free zones, the increased use of electronic communications in business transactions, and changes in transport practices. Incoterms 2000 offer a simpler and clearer presentation of the 13definitions, all of which have been revised. The broad expertise of ICCs Commission on International Commercial Practice, whose membership is drawn from all parts of the world and all trade sectors, ensures that Incoterms 2000 respond to business needs everywhere. ICC would like to express its gratitude to the members of the commission, chaired by Prof. Fabio Bortolotti (Italy), its Working Party on Trade Terms, chaired by Prof. Jan Ramberg (Sweden), and to the drafting group, which comprised Prof. Charles Debattista (Chairman - UK), Robert De Roy (Belgium), Philippe Rapatout (France), Jens Bredow (Germany) and Frank Reynolds (US). INTRODUCTION 1. PURPOSE AND SCOPE OF INCOTERMS The purpose of Incoterms is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade. Thus, the uncertainties of different interpretations of such terms in different countries can be avoided or at least reduced to a considerable degree. Frequently, parties to a contract are unaware of the different trading practices in their respective countries. This can give rise to misunderstandings, disputes and litigation, with all the waste of time and money that this entails. In order to remedy these problems, the International Chamber of Commerce first published in 1936 a set of international rules for the interpretation of trade terms. These rules were known as Incoterms 1936. Amendments and additions were later made in 1953, 1967, 1976, 1980, 1990 and presently in 2000 in order to bring the rules in line with current international trade practices. It should be stressed that the scope of Incoterms is limited to matters relating to the rights and obligations of the parties to the contract of sale with respect to the delivery of goods sold (in the sense of tangibles, not including intangibles such as computer software). It appears that two particular misconceptions about Incoterms are very common. First, Incoterms are frequently misunderstood as applying to the contract of carriage rather than to the contract of sale. Second, they are sometimes wrongly assumed to provide for all the duties which parties may wish to include in a contract of sale. As has always been underlined by ICC, Incoterms deal only with the relation between sellers and buyers under the contract of sale, and, moreover, only do so in some very distinct respects. While it is essential for exporters and importers to consider the very practical relationship between the various contracts needed to perform an international sales transaction - where not only the contract of sale is required, but also contracts of carriage, insurance and financing -Incoterms relate to only one of these contracts, namely the contract of sale. Nevertheless, the parties agreement to use a particular Incoterms would necessarily have implications for the other contracts. To mention a few examples, a seller having agreed to a CFR - or CIF - contract cannot perform such a contract by any other mode of transport than carriage by sea, since under these terms he must present a bill of lading or other maritime document to the buyer which is simply not possible if other modes of transport are used. Furthermore, the document required under a documentary credit would necessarily depend upon the means of transport intended to be used. Second, Incoterms deal with a number of identified obligations imposed on the parties - such as the sellers obligation to place the goods at the disposal of the buyer or hand them over for carriage or deliver them at destination - and with the distribution of risk between the parties in these cases. Further, they deal with the obligations to clear the goods for export and import, the packing of the goods, the buyers obligation to take delivery as well as the obligation to provide proof that the respective obligations have been duly fulfilled. Although Incoterms are extremely important for the implementation of the contract of sale, a great number of problems which may occur in such a contract are not dealt with at all, like transfer of ownership and other property rights, breaches of contract and the consequences following from such breaches as well as exemptions from liability in certain situations. It should be stressed that Incoterms are not intended to replace such contract terms that are needed for a complete contract of sale either by the incorporation of standard terms or by individually negotiated terms. Generally, Incoterms do not deal with the consequences of breach of contract and any exemptions from liability owing to various impediments. These questions must be resolved by other stipulations in the contract of sale and the applicable law. Incoterms have always been primarily intended for use where goods are sold for delivery across national boundaries: hence, international commercial terms. However, Incoterms are in practice at times also incorporated into contracts for the sale of goods within purely domestic markets. Where Incoterms are so used, the A2 and B2 clauses and any other stipulation of other articles dealing with export and import do, of course, become redundant. 2. WHY REVISIONS OF INCOTERMS? The main reason for successive revisions of Incoterms has been the need to adapt them to contemporary commercial practice. Thus, in the 1980 revision the term Free Carrier (now FCA) was introduced in order to deal with the frequent case where the reception point in maritime trade was no longer the traditional FOB - point (passing of the ships rail) but rather a point on land, prior to loading on board a vessel, where the goods were stowed into a container for subsequent transport by sea or by different means of transport in combination (so - called combined or multimodal transport). Further, in the 1990 revision of Incoterms, the clauses dealing with the sellers obligation to provide proof of delivery permitted a replacement of paper documentation by EDI - messages provided the parties had agreed to communicate electronically. Needless to say, efforts are constantly made to improve upon the drafting and presentation of Incoterms in order to facilitate their practical implementation. 3. INCOTERMS 2000 During the process of revision, which has taken about two years, ICC has done its best to invite views and responses to successive drafts from a wide ranging spectrum of world traders, represented as these various sectors are on the national committees through which ICC operates. Indeed, it has been gratifying to see that this revision process has attracted far more reaction from users around the world than any of the previous revisions of Incoterms. The result of this dialogue is Incoterms 2000, a version which when compared with Incoterms 1990may appear to have effected few changes. It is clear, however, that Incoterms now enjoy world wide recognition and ICC has therefore decided to consolidate upon that recognition and avoid change for its own sake. On the other hand, serious efforts have been made to ensure that the wording used in Incoterms 2000 clearly and accurately reflects trade practice. Moreover, substantive changes have been made in two areas: the customs clearance and payment of duty obligations under FAS and DEQ; and the loading and unloading obligations under FCA. All changes, whether substantive or formal have been made on the basis of thorough research among users of Incoterms and particular regard has been given to queries received since 1990 by the Panel of Incoterms Experts, set up as an additional service to the users of Incoterms. 4. INCORPORATION OF INCOTERMS INTO THE CONTRACT OF SALE In view of the changes made to Incoterms from time to time, it is important to ensure that where the parties intend to incorporate Incoterms into their contract of sale, an express reference is always made to the current version of Incoterms. This may easily be overlooked when, for example, a reference has been made to an earlier version in standard contract forms or in order forms used by merchants. A failure to refer to the current version may then result in disputes as to whether the parties intended to incorporate that version or an earlier version as a part of their contract. Merchants wishing to use Incoterms 2000should therefore clearly specify that their contract is governed by Incoterms 2000. 5. THE STRUCTURE OF INCOTERMS In 1990, for ease of understanding, the terms were grouped in four basically different categories: namely starting with the term whereby the seller only makes the goods available to the buyer at the sellers own premises (the E- term Ex works); followed by the second group whereby the seller is called upon to deliver the goods to a carrier appointed by the buyer (the F - terms FCA, FAS and FOB); continuing with the C - terms where the seller has to contract for carriage, but without assuming the risk of loss of or damage to the goods or additional costs due to events occurring after shipment and dispatch (CFR, CIF, CPT and CIP); and, finally, the D - terms whereby the seller has to bear all costs and risks needed to bring the goods to the place of destination (DAF, DES, DEQ, DDU and DDP). The following chart sets out this classification of the trade terms. INCOTERMS 2000 - Group E Departure - EXW Ex Works (. named place) Group F Main carriage unpaid - FCA Free Carrier (. named place) FAS Free Alongside Ship (. named port of shipment) FOB Free On Board (. named port of shipment) Group C Main Carriage Paid - CFR Cost and Freight (. named port of destination) CIF Cost, Insurance and Freight (. named port of destination) CPT Carriage Paid To (. named place of destination) CIP Carriage and Insurance Paid To (. named place of destination) Group D Arrival - DAF Delivered At Frontier (. named place) DES Delivered Ex Ship (. named port of destination) DEQ Delivered Ex Quay (. named port of destination) DDU Delivered Duty Unpaid (. named place of destination) DDP Delivered Duty Paid (. named place of destination) Further, under all terms, as in Incoterms 1990, the respective obligations of the parties have been grouped under 10 headings where each heading on the sellers side mirrors the position of the buyer with respect to the same subject matter. 6. TERMINOLOGY While drafting Incoterms 2000, considerable efforts have been made to achieve as much consistency as possible and desirable with respect to the various expressions used throughout the thirteen terms. Thus, the use of different expressions intended to convey the same meaning has been avoided. Also, whenever possible, the same expressions as appear in the 1980 UN Convention on Contracts for the International Sale of Goods (CISG) have been used. Shipper In some cases it has been necessary to use the same term to express two different meanings simply because there has been no suitable alternative. Traders will be familiar with this difficulty both in the context of contracts of sale and also of contracts of carriage. Thus, for example, the term shipper signifies both the person handing over the goods for carriage and the person who makes the contract with the carrier: however, these two shippers may be different persons, for example under a FOB contract where the seller would hand over the goods for carriage and the buyer would make the contract with the carrier. Delivery It is particularly important to note that the term delivery is used in two different senses in Incoterms. First, it is used to determine when the seller has fulfilled his delivery obligation which is specified in the A4clauses throughout Incoterms. Second, the term delivery is also used in the context of the buyers obligation to take or accept delivery of the goods, an obligation which appears in the B4 clauses throughout Incoterms. Used in this second context, the word delivery means first that the buyer accepts the very nature of the C- terms, namely that the seller fulfils his obligations upon the shipment of the goods and, second that the buyer is obliged to receive the goods. This latter obligation is important so as to avoid unnecessary charges for storage of the goods until they have been collected by the buyer. Thus, for example under CFR and CIF contracts, the buyer is bound to accept delivery of the goods and to receive them from the carrier and if the buyer fails to do so, he may become liable to pay damages to the seller who has made the contract of carriage with the carrier or, alternatively, the buyer might have to pay demurrage charges resting upon the goods in order to obtain the carriers release of the goods to him. When it is said in this context that the buyer must accept delivery, this does not mean that the buyer has accepted the goods as conforming with the contract of sale, but only that he has accepted that the seller has performed his obligation to hand the goods over for carriage in accordance with the contract of carriage which he has to make under the A3 a) clauses of the C - terms. So, if the buyer upon receipt of the goods at destination were to find that the goods did not conform to the stipulations in the contract of sale, he would be able to use any remedies which the contract of sale and the applicable law gave him against the seller, matters which, as has already been mentioned, lie entirely outside the scope of Incoterms. Where appropriate, Incoterms 2000 have used the expression placing the goods at the disposal of the buyer when the goods are made available to the buyer at a particular place. This expression is intended to bear the same meaning as that of the phrase handing over the goods used in the 1980United Nations Convention on Contracts for the International Sale of Goods. Usual The word usual appears in several terms, for example in EXW with respect to the time of delivery (A4) and in the C - terms with respect to the documents which the seller is obliged to provide and the contract of carriage which the seller must procure (A8, A3). It can, of course, be difficult to tell precisely what the word usual means, however, in many cases, it is possible to identify what persons in the trade usually do and this practice will then be the guiding light. In this sense, the word usual is rather more helpful than the word reasonable, which requires an assessment not against the world of practice but against the more difficult principle of good faith and fair dealing. In some circumstances it may well be necessary to decide what is reasonable. However, for the reasons given, in Incoterms the word usual has been generally preferred to the word reasonable. Charges With respect to the obligation to clear the goods for import it is important to determine what is meant by charges which must be paid upon import of the goods. In Incoterms 1990 the expression official charges payable upon exportation and importation of the goods was used in DDP A6. In Incoterms 2000DDP A6 the word official has been deleted, the reason being that this word gave rise to some uncertainty when determining whether the charge was official or not. No change of substantive meaning was intended through this deletion. The charges which must be paid only concern such charges as are a necessary consequence of the import as such and which thus have to be paid according to the applicable import regulations. Any additional charges levied by private parties in connection with the import are not to be included in these charges, such as charges for storage unrelated to the clearance obl